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ADMINISTRATIVE LAW Arrestee not entitled to room to talk to attorney An arrested woman was not denied opportunity to consult with her attorney when she and the attorney were not provided a private room in which to have a conversation, the North Dakota Supreme Court ruled on Nov. 29. Eriksmoen v. Director, North Dakota Department of Transportation, No. 20050129. After failing a field sobriety test, Kjerstin Eriksmoen was arrested for driving under the influence and taken to a police station. In the intoxilyzer room at the station, the arresting officer, Troy Hischer, asked her if she would submit to an intoxilyzer test. Eriksmoen’s attorney requested a room to meet with his client in private. Hischer informed him that a private room would not be available because he was required to observe Eriksmoen. However, he offered to stand at the other end of the 21-foot room so that he would not hear their conversation. The attorney determined that he could not have a private conversation with his client, and he left without advising Eriksmoen whether she should submit to the intoxilyzer test. Eriksmoen refused to take the test. The state Department of Transportation revoked her driving privileges for three years for refusing to take the intoxilyzer test. A trial court affirmed. The North Dakota Supreme Court affirmed. N.D. Cent. Code � 29-05-20 requires that “any attorney at law entitled to practice in the courts of record of this state, at his request, may visit [an accused] person after his arrest.” An arrestee need only be provided with a reasonable opportunity to consult with counsel in light of the circumstances. The court found that the attorney could have just spoken quietly with his client.   Full text of the decision CIVIL PRACTICE Imposition of jury fee is no constitutional breach Imposition of a jury fee is constitutional, the Oklahoma Supreme Court determined on Nov. 29. Barzellone v. Presley, No. 102427. Okla. Stat. tit. 28, � 152.1(A)(7) (2004) imposes a $349 jury fee as a prerequisite to accepting the first motion to enter for filing and docketing in a pending action. Timothy Barzellone filed a class action challenging the constitutionality of the fee and seeking a declaratory judgment barring collection of the fee by the court clerk in future cases. The trial court granted the court clerk summary judgment. The Oklahoma Supreme Court affirmed. The Oklahoma Constitution provides that “justice shall be administered without sale, denial, delay, or prejudice” and that the right to a jury trial “shall be and remain inviolate.” Early on, it was determined that the language of the constitution meant that justice could not be bought and that litigation expenses had to be reasonable. In reviewing the history of case law on the subject of fees, the court held that the state constitution did not guarantee that litigants could use the court system at no expense and did not intend to impose upon the public the entire financial burden of maintaining the court system. CONSTITUTIONAL LAW Denial of ‘no fly zone’ waiver by FAA is OK Congress’ restriction of the Federal Aviation Administration (FAA)’s ability to grant waivers for no-fly zone covering a stadium does not violate the equal protection rights of a 30-year-old air show, the 6th U.S. Circuit Court of Appeals ruled on Dec. 1. Cleveland National Air Show Inc. v. U.S. Department of Transportation, No. 04-4089. After the Sept. 11, 2001, terrorist attacks, the FAA imposed no-fly zones over all Major League Baseball stadiums, as well as some other sporting venues. The FAA’s directive allowed pilots to apply for waivers, but in 2003 and 2004, Congress passed legislation narrowing the FAA’s ability to grant waivers, except in connection with “an event, stadium, or other venue . . . for operational purposes.” The Cleveland National Air Show applied for a waiver for the 2004 Labor Day weekend since its show would invade the no-fly zone around Jacobs Field, where the Cleveland Indians play. The waiver was denied for the Friday night before Labor Day, due to an Indians game. The air show filed a petition to review the FAA’s denial order, which was denied. The 6th Circuit affirmed, rejecting the air show’s notion that its show is an “event” and that a waiver may be granted for the “operational purposes” of that event. Read most naturally, however, the exception for the operational purposes of “an event, stadium, or other venue” refers to the same kind of event, stadium and venue mentioned in the no-fly zones. The circuit said this “reasonable interpretation” does not violate the air show’s equal protection clause rights because Congress’ decision to protect major sporting events was a rational one. Split recovery law is an unconstitutional taking Utah’s use of the state’s “split recovery provision” to seek part of a punitive damages award was an unconstitutional taking of private property, the Utah Supreme Court held on Dec. 2. Smith v. Price Development Co., No. 20040675. Following a jury trial, Armand and Virginia Smith obtained a $5.5 million punitive damages award against Fairfax Realty Inc. But the state of Utah claimed a share of the punitive award pursuant to Utah’s “split recovery provision,” Utah Code Ann. � 78-18-1(3) (Supp. 1989), which gives the state an interest in certain punitive damages. After the state was joined as a party, the court granted the Smiths summary judgment in challenging the provision, holding that enforcement effected an unconstitutional taking of property in violation of the Utah and United States constitutions. The Utah Supreme Court affirmed, finding the provision to be a taking of private property. The state had argued that the Smiths never acquired any interest in the disputed portion of the judgment because the split recovery provision vested that portion of the judgment in the state. But the court said that the statutory language gave the state no interest in the judgment. Rather, the state’s interest in the disputed portion of the award arose only when the judgment was actually paid. CONTRACTS Exculpatory agreements violate public policy An exculpatory agreement relieving a recreational snowtube operator from liability from its future negligence was unenforceable as a violation of public policy, the Connecticut Supreme Court held on Nov. 29 in a case of first impression. Hanks v. Powder Ridge Restaurant Corp., No. SC 17327. Gregory Hanks was injured when his foot was crushed in a snowtubing run owned by Powder Ridge Restaurant Corp. Before his ride, Hanks had executed an agreement relieving Powder Ridge from any liability for injuries sustained by patrons. Hanks sued Powder Ridge for negligence, but a trial court granted summary judgment to Powder Ridge, holding that the agreement relieved Powder Ridge from liability. Reversing, the Connecticut Supreme Court held that such agreements violate public policy. The court said, “[W]ere we to adopt the position advocated by defendants, recreational operators would be able to release their liability unless it rose to a level of recklessness. As a result, recreational operators would lack the incentive to exercise even slight care with the public bearing the costs of the resulting injuries.” CRIMINAL PRACTICE Second-degree murder doesn’t need intent to kill Intent to kill is not a necessary element of the crimes of second-degree murder or voluntary manslaughter, the Idaho Supreme Court held on Nov. 30. State v. Porter, No. 31651. Michael Porter engaged in a bar fight in which he killed a man. At a preliminary hearing, a trial court held that the state had established malice aforethought in the killing, but had not established an intent to kill. Thus, the trial court dismissed second-degree murder charges, reducing the charge to voluntary manslaughter. Both Porter and the state appealed, with Porter arguing that intent to kill was a required element of both offenses and the state arguing that neither second-degree murder nor voluntary manslaughter required an intent to kill. An intermediate state appellate court ruled for the state. Affirming, the Idaho Supreme Court held that neither second-degree murder nor voluntary manslaughter required an intent to kill. Reversing existing case law holding that an intent to kill was a required element, the court said, “This Court’s language indicates that the deliberate intent to kill is not a necessary element of murder since an abandoned and malignant heart satisfies the mental element for killing that constitutes murder.” EVIDENCE Photo of caller ID box is admissible evidence A photograph of a caller ID box is admissible evidence to establish the source of harassing phone calls, the New Hampshire Supreme Court ruled on Nov. 30 in a matter of first impression. State v. Lucier, No. 2004-594. Melody Chase obtained a restraining order against her ex-boyfriend, Timothy Lucier, which was served at 8:45 p.m. on Nov. 2, 2003. At 9:04 p.m., a call was made to the residence where Chase was visiting; the caller ID box said the call was coming from Lucier. The caller asked for Chase, called her a rude name, then hung up. Twenty minutes later, Lucier entered the residence uninvited and punched Chase and another person. Lucier was arrested and charged with burglary and violation of a protective order. He sought to suppress a photograph of the caller ID box registering the 9:04 p.m. phone call as evidence, but was denied. His similar objection at trial was overruled, and Lucier was convicted. The New Hampshire Supreme Court affirmed, rejecting Lucier’s argument that the state should have been required to prove the reliability of the caller ID before admitting the photograph into evidence. Operation of a caller ID box does not require advance training and is generally known by all. The reliability of the technology is of common knowledge and the system is capable of verification. LEGAL PROFESSION Law firm may represent company, shareholder Despite the potential for a conflict of interest, a limited liability company and its majority shareholder may be represented by the same law firm in an action brought by the minority shareholder, the Iowa Supreme Court held on Dec. 2. Bottoms v. Stapleton, No. 76/04-0132. Paducah Gear & Machine Co. LLC, a limited liability company providing industrial machine shop repairs and service, has two shareholders: Jack Stapleton, who owns 51% of the shares, and Russell Bottoms, who owns the remainder. In March 2002, Stapleton and Bottoms stopped doing business together and Stapleton began Global Gear & Machine Co., which competed with Paducah Gear. Bottoms sued Stapleton and Paducah Gear for breach of fiduciary duty. Bottoms then brought a motion to disqualify the law firm of Sullivan, Ward, Asher & Patton of West Des Moines, Iowa, from representing both defendants. An attorney from the law firm Belin Lamson McCormick Zumbach Flynn of Des Moines appeared on behalf of the defendants and Sullivan Ward. Bottoms filed another motion to disqualify Belin Lamson from representing both defendants. The trial court granted both of the plaintiff’s motions to disqualify. The Iowa Supreme Court reversed and remanded. Iowa Rule of Professional Conduct 32:1.7 provides that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” A concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.” Concluding that there was no substantial evidence that the defendants’ interests were likely to become adverse, especially since one defendant is a limited liability company and the other is the controlling shareholder, the court did not rule out the possibility that a conflict of interest warranting disqualification may arise in the future.

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